Mager v. Canadian National Railway Company et al

Filing 43

ORDER ADOPTING REPORT AND RECOMMENDATION 40 re 34 : Defendant's motion to dismiss 34 is GRANTED; case closed; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION

PETER J. MAGER,
Plaintiff,
v.

Case No. 2:16-CV-145

WISCONSIN CENTRAL LTD.,

HON. GORDON J. QUIST

Defendant.
__________________________/

ORDER ADOPTING
REPORT AND RECOMMENDATION
Plaintiff, Peter Mager, filed the instant action against Defendant, Wisconsin Central Ltd.
(WCL), alleging violations of the Federal Employer’s Liability Act, 45 U.S.C. § 51. On October
31, 2017, WCL filed a motion to dismiss due to Mager and his attorney’s conduct, largely related
to conduct at the court-ordered independent medical examination. (ECF No.34.) Mager filed an
untimely response on November 15, 2017. (ECF No. 36.) WCL replied on November 21, 2017.
(ECF No. 37.) Magistrate Judge Timothy Greeley, who issued the relevant orders and presided
over the relevant hearings and conferences, issued a Report and Recommendation (R & R) on
December 28, 2017, recommending that the Court grant WCL’s motion and dismiss the case with
prejudice. (ECF No. 40.) Mager filed objections on January 11, 2018 (ECF No. 41), and WCL
responded. (ECF No. 42.)
Pursuant to Federal Rule of Civil Procedure 72(b), a party “may serve and file specific
written objections” to the R & R, and the Court is to consider any proper objection. Local Rule

72.3(b) likewise requires that written objections “shall specifically identify the portions” of the R
& R to which a party objects. Pursuant to 28 U.S.C. § 636(b), upon receiving objections to a report
and recommendation, the district judge “shall make a de novo determination of those portions of
the report or specified proposed findings or recommendations to which objection is made.” After
conducting a de novo review of the R & R, Mager’s Objections, and the pertinent portions of the
record, the Court concludes that the R & R should be adopted.
Magistrate Judge Greeley’s R & R provided a full summary of the relevant facts of the case
and relied on a significant body of Sixth Circuit case law to support dismissing Mager’s case for
failing to comply with the Federal Rules of Civil Procedure and with court orders.
Mager does not engage with the case law at all, except for Mulbah v. Detroit Bd. of Educ.,
261 F.3d 586, 590 (6th Cir. 2001), which discouraged dismissing a case for purposes of
disciplining the attorney. The R & R adequately distinguished the facts of the instant case in light
of Mulbah. (ECF No. 40 at PageID.261–62.) Mager attempts to discount his and his counsel’s
misconduct, but fails to show that the R & R’s conclusions are incorrect. Mager and his counsel
both committed misconduct and have failed to offer a convincing substantive or legal rebuttal to
the R & R. Having reviewed the R & R, the Court finds no error and will dismiss the case with
prejudice.
Therefore,
IT IS HEREBY ORDERED that the Magistrate Judge’s R & R (ECF No. 40) is
APPROVED AND ADOPTED as the Opinion of this Court, and Plaintiff’s Objections (ECF No.
41) are OVERRULED.
IT IS FURTHER ORDERED that Defendant’s motion to dismiss (ECF No. 34) is
GRANTED, and the case is dismissed with prejudice.

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The case is concluded.
A separate judgment will issue.

Dated: March 9, 2018

/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE

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